More Information About Estate Planning,
Elder Care Law, Real Estate Law, & Business Law

Estate & Trust Planning
Good estate planning is more than just a simple Will. It minimizes potential taxes and fees (including Federal and State gift and estate taxes), and sets up contingency planning to make sure wishes regarding health care treatment are followed before and after death. A good estate plan also coordinates what happens to a home, investments, business, life insurance, employee benefits (such as a 401K plan) and other property in the event of disability or death.

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Estate & Trust Administration
Estates are categorized as probate or non-probate property. Probate property is property that is transferred by the provisions of a Will. Non-probate property is property that is either jointly held and passes by right of survivorship, is directed by beneficiary designation such as an IRA or a life insurance policy, or passes according to the terms of a trust.

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Wills
A Will is a written instrument containing directions on how the assets and property of the testator (individual creating the Will) shall be divided upon his or her death. Wills can also contain instructions regarding the care of minor children, gifts to charity and formation of posthumous trusts. In order for a Will to be legally valid, the testator must sign the Will in the presence of two witnesses and he or she must be mentally competent and not acting under duress or under the controlling influence of another.

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Trusts
Trusts are estate-planning tools that can replace or supplement Wills and can also help manage property during life. A trust manages the distribution of a person's property by transferring its benefits and obligations to different people. Maintaining assets in a Trust often makes it easier to minimize taxes and leave a larger inheritance. A Trust is also a way to provide a steady income to the Beneficiary over time (as opposed to distribution in a lump sum), thus reducing the Beneficiary's tax burden, allowing the Trust to grow through investment, and keeping assets free from creditors of the Trust beneficiary. Trusts can also be established for the benefit of charitable organizations.

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Probate
Probate is the legal process of transferring property following a person's death. Although probate customs and laws have changed over time, the purpose has remained much the same: an individual formalizes his or her intentions as to the transfer of his or her property at the time of death (typically through a Will); his or her property is collected, certain debts are paid from the estate and the property is distributed accordingly.

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Guardianship & Preneed Guardian Directives for Adults & Minor Children

A guardianship is a legal relationship created by a court between a guardian and his ward, either a minor child or an incapacitated adult. The guardian has a legal right and duty to care for the ward. This may involve making personal decisions on his or her behalf, managing property or both. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity or disability.

Courts generally have the power to appoint a guardian for an individual in need of special protection. There are different types of guardians that can be appointed. A guardian with responsibility for both the personal well-being and the financial interests of the ward is a general guardian. A person may also be appointed as a special guardian, having limited powers over the interests of the ward. A guardian appointed to represent the interests of a person with respect to a single action in litigation is a guardian ad litem.

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Estate & Trust Tax Returns

The money and property you own when you die (your estate) may be subject to federal estate tax. Most estates are not subject to the tax. Only about 2% of all estates are subject to the estate tax. An estate tax return generally will not be needed unless the estate is worth more than the applicable exclusion amount for the year of death. The estate tax is technically a tax on the transfer of property to others, generally to children of a decedent.

Estate taxes are different from, and in addition to, probate expenses and final income taxes owed on income the decedent earned in the year of his or her death. They also are separate from inheritance taxes that are collected by some states.

Most states impose their own estate taxes, usually as a "sponge tax" that piggybacks on the federal estate tax. The federal estate tax allows each estate a tax credit for any state inheritance or estate taxes paid, up to a maximum dollar amount.

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Real Estate Document Preparation
Whatever may be said during real estate negotiations, whatever promises may have been made, it is the final written documents that will control what happens. Many of the closing documents involve the completion of pre-printed forms, but sometimes the details of a particular transaction require modification of a form to provide adequate protection. Your real estate attorney can either prepare all of the documents, or can review the documents that have been prepared, explaining them to you and suggesting changes, as needed, for your benefit.

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Advance Directives
A witnessed written document in which instructions are given by a principal or in which the principal's desires are expressed concerning any aspect of the principal's health care, and includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift.

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Life Prolonging Procedure
"Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.

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Incapacity or Incompetent
"Incapacity" or "incompetent" means the patient is physically or mentally unable to communicate a willful and knowing health care decision. (GIVE INFORMED CONSENT)

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Informed Consent
"Informed consent" means consent voluntarily given by a person after a sufficient explanation and disclosure of the subject matter involved to enable that person to have a general understanding of the treatment. or procedure and medically acceptable alternatives, including the substantial risks and hazards in the proposed treatment-or procedures, and to make a knowing health care decision without coercion or undue influence.

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Initiation of Process

If a principal's capacity to make health care decisions or ability to give informed consent is in question, the attending physician shall evaluate principal's capacity and if the physician concludes that the principal lacks capacity, enter that evaluation in the patient's medical record.

If the attending physician has a question as to whether the principal lacks capacity, another physician shall also evaluate capacity. If second physician concurs, both conclusions are placed in medical record. Health care surrogate is notified, in writing, that authority under instrument has commenced.

Upon commencement of surrogate's authority, a surrogate who is not the principal's spouse shall notify the principal's spouse or adult children of the principal's designation of the surrogate.

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Living Will

A living will must be signed by the principal in the presence of two subscribing witnesses. One of the witnesses is neither a spouse nor a blood relative of the principal. If principal is physically unable to sign, one of the witnesses must subscribe the principal's signature in the principal's presence and at the principal's direction.

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Thresholds
A person who has never been capacitated is not subject to this section of the law. Any competent adult may make a living will and direct providing, withholding, or withdrawal of life-prolonging procedures subject to the following thresholds: Such person must have a terminal condition or Such person is in a persistent vegetative state or Such person must have an end stage condition.

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Terminal Condition
A condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.

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Persistent Vegetative State
A permanent and irreversible condition of unconsciousness in which there is : The absence of voluntary action or cognitive behavior of any kind and An inability to communicate or interact purposefully with the environment.

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End-Stage Language
Section 765.101(4), "End-stage condition" means an irreversible condition that is caused by injury, disease, or illness which has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective.

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Process and Safeguards
Attending physician or treating physician and another consulting physician must determine that there is no reasonable medical probability of recovery and physician must determine that:
  • Patient has a terminal condition or
  • Patient has an end-stage condition or
  • Patient is in a persistent vegetative state

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Surrogacy Designation (Health Care Surrogate)
  1. A written document designating a surrogate to make health care decisions for a principal shall be signed by the principal in the presence of two subscribing adult witnesses. A principal unable to sign the instrument may, in the presence of witnesses, direct that another person sign the principal's name as required herein. An exact copy of the instrument shall be provided to the surrogate.
  2. The person designated as surrogate shall not act as witness to the execution of the document designating the health care surrogate. At least one person who acts as a witness shall be neither the principal's spouse nor blood relative.
  3. A document designating a health care surrogate may also designate an alternate surrogate provided the designation is explicit. The alternate surrogate may assume his or her duties as surrogate for the principal if the original surrogate is unwilling or unable to perform his or her duties. The principal's failure to designate an alternate surrogate shall not invalidate the designation.

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HIPAA (medical information releases)
My Health Care Surrogate shall be my "Personal Representative" for purposes of compliance with Federal HIPAA (Health Insurance Portability and Accountability Act) Laws and Regulations and this designation shall become effective immediately upon the execution of this instrument and shall not be contingent upon my inability to make health care decisions or to provide informed consent. My Health Care Surrogate shall have access to any and all medical records, medical history, billing and any other information related to my medical care.

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Amending or Revoking Advanced Directives
An advanced directive or designation may be amended or revoked at any time by a competent principal:
  • By means of a signed, dated writing
  • By means of a physical cancellation or destruction of the advance directive by principal or another in principal's presence and direction.
  • By means of an oral expression of intent to amend or revoke
  • By means of a subsequently executed advance directive that is materially different from a previously executed advance directive.
  • Annulment or dissolution of marriage revokes designation of former spouse.

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Surrogate's Actions
Prior to taking action, Surrogate must be satisfied that:
  • Patient is incapacitated with no reasonable medical probability of recovery.
  • Patient has met one or more of the barrier thresholds
  • Substituted judgment standard-This is what patient would have done.

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Best Interest Standard
If there is no indication of what the principal would have chosen, the surrogate may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.

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Proxy
A proxy is a substitute decision maker who may make medical decisions if the patient has not executed an advance directive or designated a surrogate or if the surrogate is no longer available.

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Order of Priority of Proxy
  1. The judicially appointed guardian of the patient who has been authorized to consent to medical treatment,
  2. The patient's spouse;
  3. An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;
  4. A parent of the patient;
  5. The adult sibling of the patient or, if the patient has ore than one sibling, a majority of the adult siblings who are reasonably available for consultation;
  6. An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient's activities, health, and religious or moral beliefs; or
  7. A close friend of the patient
  8. A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider's bio ethics committee and must not be employed by the provider. If the provider does not have a bio ethics committee, then such a proxy may be chosen through an arrangement with the bio ethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient's care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility's bio ethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record.

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Proxy Standards

The patient does not have a reasonable medical probability of recovering capacity All threshold barriers, (terminal condition, or end stage condition or persistent vegetative state) A proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent

NEW AND CURRENT PROXY STANDARD
or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest.

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Review of Actions
  • Patient's family, health care facility, or attending physician, or any other interested party may seek expedited judicial intervention pursuant to rule 5.900 if that person believes:
  • The surrogate or proxy's decision is not in accord with the patient's know desires or the provisions of this chapter
  • The advance directive is ambiguous, or the patient has changed his or her mind after execution of the advanced directive.
  • The surrogate or proxy was improperly designated or appointed, or the designation of the surrogate is no longer effective or has been revoked
  • The surrogate or proxy has abused powers
  • The patient has sufficient capacity to make his or her own health care decisions.

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765.404 Persistent Vegetative State
if no advanced directives and no knowledge of patients's desire and no family or friends
Guardian should be appointed
Medical ethic board convened and a determination made
Best interest standard

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Do Not Resuscitate Order
Must use designated yellow form
One cannot self direct DNRO through living will
Current belief is that DNRO still is subject to threshold barriers.

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Pre-Need Guardian
F.S.744.3045
The written declaration must reasonably identify the principal and pre-need guardian and be signed by the principal in the presence of at least two attesting witnesses present at the same time.

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Durable Power of Attorney
The durable power of attorney must be in writing, must be executed with the same formalities required for the conveyance of real property by Florida law. Instrument is immediately effective except for springing power of attorney that the author personally does not recommend or utilize. Health Care Surrogacy takes priority over Power of Attorney with health care language.

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Physician's Affidavit
A determination that a principal lacks the capacity to manage property as defined in s. 744.102(10)(a) must be made and evidenced by the affidavit of a physician licensed to practice medicine. A judicial determination that the principal lacks the capacity to manage property pursuant to chapter 744 is not required prior to the determination by the physician and the execution of the affidavit.

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Physician's Affidavit Requirements

For purposes of this section, the physician executing the affidavit must be the primary physician who has responsibility for the treatment and care of the principal.

The affidavit executed by a physician must state where the physician is licensed to practice medicine, that the physician is the primary physician who has responsibility for the treatment and care of the principal, and that the physician believes that the principal lacks the capacity to manage property as defined in s. 744. 102(1O)(a).

A third party may not rely on the authority granted in a durable power of attorney conditioned on the principal's lack of capacity to manage property as defined in s 744.102(l0)(a) when any affidavit presented has been executed more than 6 months prior to the first presentation of the durable power of attorney to the third party.

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Life Care Planning

Life care planning involves more than one's estate plan, but includes issues of aging with dignity and meeting one's special needs.

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Assisted Living Planning

Assisted living planning involves working with the living facility to monitor the client's care and establish bill paying services for continuity of care.

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Medicaid Planning

Medicaid planning involves preserving assets and applying for public benefits.

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Veterans Benefits

Veterans benefits involves assisting with Aid and Attendance benefits for veterans who require assistance of another person for daily living and safety purposes.

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Supplemental Needs Trusts

Supplemental needs trusts involve preserving one's assets and quality of life while qualifying for Medicaid.

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Charitable Pooled Trust for the Aged and Disabled

Charitable pooled trust for the aged and disabled is a 42 U.S.C. 1396p(d)(4)(C) trust, which is a federally approved charitable trust that provides services for those who qualify.

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Personal service contracts

A personal service contract is a written legal agreement between the client and another party. The other party promises to provide a detailed list of personal services for the benefit of the client who is in the living facility. These contracted services are paid for by the client in a lump sum. These services are over and above those services provided by the living facility where the client resides.

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Real Estate Negotiations
In major financial transactions, especially those involving real estate properties, it’s important to have a knowledgeable negotiator working for you, one who knows the law and whose loyalty to you is undivided. Real estate brokers and agents depend on sales commissions for their livelihood. If the sale does not occur they receive nothing for their time and energy, and this can create a conflict of interest. You need someone representing you who is less concerned about a particular sale going through than with making certain your legal rights are protected.

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Title Clearance Issues
In large urban centers title insurance has reduced the need for in-depth title searches by real estate lawyers, but this is not necessarily the case in rural areas of the state. As with any other insurance policy, title insurance documents are usually packed with disclaimers of one kind or another, all in highly technical real estate jargon and legalese, and all set forth in the tiniest of fine print. Failure to fully understand the import of a particular clause or disclaimer in the policy can result in financial consequences at some later date, when it may be too late to do anything about it. If you find things in the title policy you don’t understand, your real estate attorney can explain them to you and can also point to you any items that need to be challenged and resolved. Given the amount of money involved in modern real estate transactions, it is critical to make certain that title problems are not going to make the deal a disaster.

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Quiet Title Matters
Sometimes a particular piece of real property has title defects of such significance that no sale or other transfer of ownership can occur until they are resolved. The usual method of clearing title defects is a lawsuit called a “Quiet Title” action. In the Quiet Title action, the Court would receive and consider evidence on the issue, and if satisfied that the judgment had been discharged, would issue an order dissolving (removing) the judgment lien.

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Mechanic’s Liens
When doing building construction or repairs, building contractors often utilize a legal device called a “mechanics lien” as a means of making certain they will be paid for their labor and materials. The creation of a mechanic’s lien involves written notice to the owner of the property and other formal requirements, and its enforcement is subject to strict procedural rules. Once a valid mechanic’s lien attaches to the property, however, it operates as a claim against the property which, if it remains unpaid, can ultimately result in foreclosure proceedings.

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Real Estate Document Preparation
Whatever may be said during real estate negotiations, whatever promises may have been made, it is the final written documents that will control what happens. Many of the closing documents involve the completion of pre-printed forms, but sometimes the details of a particular transaction require modification of a form to provide adequate protection. Your real estate attorney can either prepare all of the documents, or can review the documents that have been prepared, explaining them to you and suggesting changes, as needed, for your benefit.

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Closing Attorney Representation
The majority of transactions are concluded routinely, with no unanticipated problems and as it may well appear after the fact, no need for legal representation during the closing. There is no legal requirement for representation by counsel at the closing, but most lenders and prudent investors will do so. It is at closing that critical disputes often arise concerning the language in a particular clause or some other technical aspect of the transaction.

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Sales Breach Issues
Once a written agreement has been executed by both parties to a real estate transaction its provisions are legally binding. Which judicial remedies, if any, may be available for the breach of the agreement depends on a variety of factors. There may, for example, be remedies available to the Buyer if the Seller breaches that are not available to the Seller, if the Buyer is the breaching party.

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1031 Exchanges
Internal Revenue Service Code §1031 provides a means for deferring the capital gains tax consequences of a real estate transaction when the proceeds of sale from one transaction are to be promptly reinvested in another similar type property. The key word here is “deferral". What happens is that the tax basis of the old property is transferred to the new, so that when the new property is ultimately sold, the tax will be due. Of course, if the second property is also sold under a 1031 exchange, the tax will be deferred yet again.

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Contract
A contract is a legally binding exchange of promises or agreement between parties that the law will enforce. Breach of contract is recognized by the law and remedies can be provided. Almost everyone makes contracts every day. Sometimes written contracts are required, such as when buying a house. However, most contracts can be and are made orally, like buying a meal at a restaurant. Contract law can be classified as part of a general law of obligations.

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Operating Agreement
An operating agreement determines how the business is managed and it is used to override default rules imposed by a state’s LLC Act. Operating agreements generally address: 1) member’s capital and service contributions; 2) management of the LLC (member-managed or manager-managed); 3) buy-out provisions; 4) voting rights; 5) manager’s rights and responsibilities; 6) distributions; 7) tax planning; and 8) dissociation and dissolution.

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Sole proprietorship
A sole proprietorship is a business owned by one person. The owner may operate on his or her own or may employ others. The owner of the business has total and unlimited personal liability of the debts incurred by the business.

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Partnership
A partnership is a form of business in which two or more people operate for the common goal of making profit. Each partner has total and unlimited personal liability of the debts incurred by the partnership. There are three typical classifications of partnerships: general partnerships, limited partnerships, and limited liability partnerships.

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Corporation
A business corporation is a for-profit, limited liability entity that has a separate legal personality from its member. A corporation is owned by one or more shareholders and is overseen by a board of directors, which hires the business’s managerial staff.

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Cooperative
Often referred to as a “Co-Op”, a cooperative is a for-profit, limited liability entity that differs from a corporation in that it has members, as opposed to shareholders, who share decision-making authority. Cooperatives are typically classified as either consumer cooperatives or worker cooperatives. Cooperatives are fundamental to the ideology of economic democracy.

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Limited Liability Companies
LLCs are very flexible in nature and the operating agreement defines each member or manager’s rights, powers and entitlements. This includes capital accounts, membership interest, distributions of profit and allocated tax responsibility, just to name a few. This internal document is an agreement set by the company members that contains provisions for critical items and rules that run the company. Operating agreements can be amended at any time by the company members or managers. LLCs that do not have an operating agreement will be governed by state LLC law rather than what you and your business associates decide.

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Limited Liability Partnerships
LLPs allow partnerships and professionals to limit their liability and still have the benefits provided to other corporate businesses.

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Sub Chapters
This election allows a small business to be taxed at lower individual tax rates rather than higher corporate tax rates.

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Limited Liability
Corporations, limited liability partnerships, and other specific types of business organizations protect their owners from business failure by doing business under a separate legal entity with certain legal protections. In contrast, unincorporated businesses or persons working on their own are usually not so protected.

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Tax Advantages
Different structures are treated differently in tax law, and may have advantages for this reason.

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